Court hears Texas dispute over Confederate flag

Nov. 6, 2013 at 5:06 a.m.

NEW ORLEANS (AP) — A group that petitioned for a customized Texas license plate featuring the Confederate battle flag on Wednesday urged a federal appeals court to revive its lawsuit against the state officials who rejected the design.

A three-judge panel of the 5th U.S. Circuit Court of Appeals didn’t indicate how soon it would rule after hearing arguments on both sides of the dispute.

The Texas Division of the Sons of Confederate Veterans sued members of the state Department of Motor Vehicles Board in 2011 after they denied its application for a specialty plate.

The group says its design honors the memory of Confederate soldiers and represents Southern heritage, but the board concluded it would offend many residents who believe the flag is a racially charged symbol of repression.

John McConnell, a lawyer for the nonprofit group, said the board engaged in “viewpoint discrimination” that trampled on his client’s First Amendment right to freedom of expression.

“Obviously, there is a debate over what the meaning of the Confederate battle flag is,” McConnell said. “The state cannot enter the debate and silence one point of view and endorse the views of others.”

U.S. District Judge Sam Sparks dismissed the group’s lawsuit in April, ruling the First Amendment doesn’t require the state to place the flag on government-controlled property.

Texas Solicitor General Jonathan Mitchell denied that the board discriminated against the group. Mitchell said the “government-speech doctrine” allows the state to pick and choose which messages and symbols appear on the state-issued plates.

If the board was required to maintain “viewpoint neutrality,” its members would have to issue specialty plates to anyone who applied for one or else scrap the program altogether, Mitchell argued.

“There’s no way to issue a specialty plate without favoring one viewpoint over another,” he said.

5th Circuit Judge Jerry Smith asked McConnell why the design of customized plates wouldn’t be protected government speech. McConnell said Texas has authorized roughly 300 specialty plates for a wide variety of groups, including some with overtly religious symbols. When drivers spend extra money to get customized plates, it’s a form of personal expression, he argued.

“In this case, there is a real message that is expressed by the Confederate flag,” McConnell said.

The board received hundreds of comments opposed to the group’s design and heard objections from elected officials, clergy members, NAACP members and other critics during a November 2011 board meeting.

Judge Jennifer Walker Elrod asked Mitchell if the board bases its decisions on the prevailing opinions expressed by the public during its meetings.

“It’s dependent on the board’s judgment,” Mitchell said.

McConnell argued that speech can’t be restricted simply because it might offend somebody.

“There’s a real problem with defining what level of offensiveness would matter here,” he said.

In a court filing, lawyers for the Sons of Confederate Veterans said the group currently has specialty license plates featuring the Confederate flag available in Georgia, North Carolina, Alabama, Maryland, Mississippi, Louisiana, South Carolina, Tennessee and Virginia.

Elrod asked Mitchell whether Texas is “out of step” with other states on the issue.

Mitchell said it’s difficult to answer that question, but “some of them were done under court orders and some of them were done under the specter of threatened litigation.”